Policy Change Impacts Citizenship of Certain Children Born Outside the U.S.

The U.S. Citizenship and Immigration Services (USCIS) has released policy guidance, effective October 29, 2019, modifying certain residency requirements for obtaining U.S. citizenship. Notably, this policy impacts children born abroad to U.S. government employees and U.S. armed forces members. Under the new policy guidance, “children residing abroad with their U.S. citizen parents who are U.S. government employees or members of the U.S. armed forces stationed abroad are not considered to be residing in the United States for acquisition of citizenship.”

Background

Under the Immigration and Nationality Act (INA), if a child is born outside the United States to at least one U.S. citizen (USC) parent, in most situations, the child automatically acquires U.S. citizenship at birth. In situations where the child is not considered a USC at birth, however, the child still may be able to acquire U.S. citizenship through the parent/s by meeting certain requirements provided for in the INA. INA 320 lays out the requirements that must be met for a child who resides in the U.S. as a lawful permanent resident (i.e., “green card” holder) to automatically acquire U.S. citizenship. Meanwhile, INA 322 provides for how an application for U.S. citizenship may be filed on behalf of the child of a USC who resides abroad.

Policy Guidance Redefines “Resides” Under INA Section 320

If a child is not a USC at birth, the child will automatically become a USC under INA 320 if ALL of the following conditions are met:

• The child has at least one parent, including an adoptive parent, who is a U.S. citizen.
• The child is under 18 years of
• The child is a lawful permanent resident.
• The child is residing in the United States in the legal and physical custody of the U.S. citizen

Children of U.S. government employees and U.S. armed forces members employed or stationed outside of the United States historically have been considered to be “residing in the United States” for purposes of acquiring automatic citizenship under INA 320. This update in policy guidance ends this accommodation, effective October 29, 2019. Per the new guidance, the “USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as ‘residing in the United States’ for purposes of acquiring citizenship under INA 320.”

Guidance also Distinguishes “Residence” from “Physical Presence”

The policy guidance also “[c]larifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States.” As explained in the guidance, a temporary trip to the United States does not establish residency. Rather, residency is determined by a totality of the circumstances.

This clarification in the guidance is not necessarily aimed directly at U.S. government employees and U.S. armed forces members who have children while stationed abroad, but it does serve to emphasize that a child born abroad to a USC parent cannot merely be taken on a brief trip to the U.S. in order to acquire U.S. citizenship for the child under INA 320.

Applying for Citizenship Under INA Section 322

The policy guidance explains that the USC parent of a child affected by the new policy guidance may be able file an application for U.S. citizenship on behalf of the child under INA 322.

To qualify, ALL of the following requirements must be met:

• The child has at least one USC parent.
• The child’s USC parent (or USC grandparent) meets certain physical presence requirements in the United States or an outlying possession.
• The child is under 18 years of age.
• The child is residing outside of the United States in the legal and physical custody of the USC parent, or of a person who does not object to the application if the USC parent is deceased.
• The child is lawfully admitted, physically present, and maintaining a lawful status in the U.S. at the time the application is approved and at the time of naturalization.

Again, unlike INA 320, which confers citizenship automatically once the requirements are met, becoming a USC under INA 322 requires the parent to submit an application for the child.

Conclusion

It is unclear why the Trump Administration has taken this action that only serves to harm certain U.S. citizen government employees and members of the U.S. armed forces who are serving the United States from abroad. While the Administration has long made it clear that it disfavors immigrants, it now seems to be expanding its definition of who should be classified as one.

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